THE JOURNAL OF
APPELLATE PRACTICE
AND PROCESS
Volume 14 | Issue 2
Article 2
2013
A Nonagenarian Discusses Life as a Senior Circuit
Judge
Ruggero J. Aldisert
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THE JOURNAL OF
APPELLATE PRACTICE
AND PROCESS
ESSAY
A NONAGENARIAN DISCUSSES LIFE
AS A SENIOR CIRCUIT JUDGE
Ruggero
J. Aldisert*
A senior circuit judge is often asked: What do you people
do? What kind of cases do they assign to you? And how many?
Do you decide what cases you want to work on? Where do you
work? What kind of staff helps you? Do you have any spare
time to do legal writing for the public? How often do you do it?
Any books? Any articles? ....
These are legitimate questions, and I have decided to take a
crack at answerinF them. I do so both because the literature is
somewhat sparse and also because senior judges are, by
definition, senior citizens, and often the assumption is that they
are doddering and "over the hill." At law schools-heavens to
Betsy-both faculty and student law review editors don't truck
with what they consider the Geritol set, and the general
*Senior United States Circuit Judge, Chief Judge Emeritus, United States Court of Appeals
for the Third Circuit. The author acknowledges the editing assistance of his 2012-13
clerks, Daniel S. Gershwin, J.D., University of Pennsylvania Law School, and Kathleen
Jones Covarrubias, J.D., University of Southern California Gould School of Law; and his
2013-14 clerks, David A. Ciarlo, J.D., University of Southern California Gould School of
Law, and Fiona Y. Tang, J.D., University of California, Berkeley, School of Law.
1. For a fine exception, see Frederic Block, Senior Status: An "Active " Senior Judge
CorrectsSome Common Misunderstandings,92 Cornell L. Rev. 533 (2007).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 14, No. 2 (Fall 2013)
184
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
understanding is that senior judges are limited to super-active
physical activities like shuffleboard at an AARP conference,
hearing an occasional case or two when their schedules permit.
Pardon the sexist comment, but this is merely an old wives' tale
and it is a glaring misrepresentation of who we senior judges are
and what we do.
The brute facts indicate that judges in senior status
participate meaningfully in court business and contribute a
substantial percentage of the total judicial work undertaken in
both the federal courts of appeals and federal district courts.2 In
recent years, judges in senior status were responsible for nearly
one-fifth of the total participation in appeals considered by the
federal courts of appeals across the country: 18.2 percent of
those cases in 2008, 17.8 percent in 2009, 21.6 percent in 2010
21.7 gercent in 2011, 20.4 percent in 2012, and 19.9 percent in
2013.
Although this Article will focus on the experiences of
senior judges on the federal courts of appeals, senior judges
make meaningful contributions to the federal district courts as
well. In 2011 senior district judges were responsible for 17.2
percent of the total case terminations in those courts.4
I will write primarily about my experiences as part of this
cohort, but before I delve too deeply into my own experiences as
a senior judge, I believe that it is useful to give a brief
description of the statutory authority for the senior judge
2. See Stephen B. Burbank, S. Jay Plager & Gregory Ablavsky, Leaving the Bench,
1970-2009: The Choices FederalJudges Make, What Influences Those Choices, and Their
Consequences, 161 U. Pa. L. Rev. 1, 21, 28-29 (2012) [hereinafter Leaving the Bench].
Burbank, Plager and Ablavsky draw on data from the Administrative Office of the U.S.
Courts (the "AO"), and calculate the percentage of cases in which senior courts of appeals
judges participated, including cases in which oral argument was held and cases that were
submitted on the briefs. For district courts, the authors calculate the percentage of case
terminations for which senior judges were responsible.
3. See Administrative Office of the U.S. Courts, Case Participationsin the US.
Courts of Appeals, http://www.uscourts.gov/viewer.aspx?doc=/uscourts/Statistics/Federal
CourtManagementStatistics/2013/case-participation-summary-pages-june-2013.pdf (June
2013) (accessed Jan. 29, 2014; copy on file with Journal of Appellate Practice and
Process).
4. See Administrative Office of the U.S. Courts, Civil Cases and Criminal Defendants
Terminated by Senior, Visiting, and MagistrateJudges, http://www.uscourts.gov/uscourts/
Statistics/JudicialFactsAndFigures/201 1/Table6O6.pdf (indicating that in 2011 senior
district court judges assisted in 69,765 out of 404,612 civil and criminal cases) (accessed
Jan. 29, 2014; copy on file with Journal of Appellate Practice and Process).
LIFE AS A SENIOR CIRCUIT JUDGE
185
position, the process by which one becomes a senior judge, the
general duties of senior judges, and the expectations for senior
judges in my circuit.
I. THE SENIOR CIRCUIT JUDGE: A GENERAL DESCRIPTION
Until the Judiciary Act of 1869, a federal judge could
leave the bench only by resignation or by removal, if he or she
was convicted on articles of impeachment. The Judiciary Act of
1869 provided judges with an additional option: retirement with
a pension equal to the judge's salary following service of ten
years and attainment of the age of seventy.6 This was followed
in 1919 by an additional Act that created yet another option: the
position now known as senior judge. At that time, those in the
position of senior judge were eligible to function as active
judges, receiving the same salary, but with a reduced calendar.
Subsequent legislation in 1948 provided that senior judges were
eligible for salary increases similar to those authorized for active
judges.8
Since 1989, the five options for leaving the federal
judiciary-removal, resignation, retirement, senior status, and
death-have remained about the same. The current statute
providing for the office of senior judge, 28 U.S.C. § 371,
provides:
(a) Any justice or judge of the United States appointed to hold
office during good behavior may retire from the office after
attaining the age and meeting the service requirements,
whether continuous or otherwise, of subsection (c) and shall,
during the remainder of his lifetime, receive an annuity equal
to the salary he was receiving at the time he retired.
(b)(1) Any justice or judge of the United States appointed to
hold office during good behavior may retain the office but
retire from regular active service after attaining the age and
meeting the service requirements, whether continuous or
otherwise, of subsection (c) of this section and shall, during
5. Leaving the Bench, supra n. 2, at 7.
6. Id. (citing Judiciary Act of 1869, ch. 22, § 5, 16 Stat. 44, 45).
7. Id. at 8 (citing Act of Feb. 25, 1919, ch. 29, § 6, 40 Stat. 1156, 1157-58).
8. Id. at 10 (citing Act of June 25, 1948, ch. 646, §§ 294, 371, 372, 62 Stat. 869, 901,
903-04).
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
186
the remainder of his or her lifetime, continue to receive the
salary of the office if he or she meets the requirements of
subsection (e).
(c) The age and service requirements for retirement under this
section are as follows:
Attained age:
Years of service:
65
15
66
14
67
13
68
12
69
11
70
101
The age and service requirements for retirement under § 371
have come to be known as the "Rule of 80." By way of example,
a judge who is sixty-five must have fifteen years of service
before becoming eligible to take senior status. A judge who is
seventy need have only ten.10 In short, once federal judges
satisfy the Rule of 80, they have three choices. They can choose
to (1) continue in active service, (2) officially retire and receive
annuities for life equal to their salaries at retirement, or (3) take
senior status.
When a judge retires, he or she receives as a pension the
last salary received while an active judge. Compensation of
senior judges is much different. If and when active judges'
salaries are increased, senior judges' compensation is also
increased. Eligibility for these pay increases, however, requires
that they perform a minimum workload certified by the circuit
chief judge and the Chief Justice of the United States. Moreover,
judges in senior status continue to be eligible to participate in
insurance and survivor-annuity programs.
The remainder of this essay will focus on judges, like me,
who have decided to retire into senior status upon satisfaction of
9. 28 U.S.C § 371 (available at http://uscode.house.gov).
10. 28 U.S.C. § 371(c).
11. For a discussion of the factors that may contribute to a judge's decision, see
generally Stephen J. Choi, Mitu Gulati & Eric A. Posner, The Law and Policy of Judicial
Retirement: An EmpiricalStudy, 42 J. Legal Stud. 111 (2013).
12. For more on this topic see Leaving the Bench, supra n. 2, at 31-35.
LIFE AS A SENIOR CIRCUIT JUDGE
187
the Rule of 80. As I will explain, this "retirement" is in name
only; it looks very little like the retirement known to most
Americans.
Many circuit judges take senior status within a few years of
turning sixty-five, the minimum age in the group being sixtyfive, the maximum age being eighty-four, and the average and
median ages both being sixty-eight.13 These newcomers or
"young" judges must be compared with old geezers like me-I
turned ninety-four in November 2013, served eighteen years as
an active judge from July 25, 1968 until December 31, 1986,
and have served as a senior judge thereafter. Seldom does a
judge serve far longer as a senior judge than as an active judge,
and I confess that my longevity is a remarkable exception. It
has, in any event, given me the perfect longitudinal perspective
from which to write this essay.
II. SENIOR JUDGES IN THE REGIONAL CIRCUITS:
A STATISTICAL SNAPSHOT
On my court, there are twelve senior judges, and I am the
most senior of this illustrious group, both in terms of age and
years of service. It is interesting to note that courts have quite
different ratios of active to senior judges. Table 1 shows the
ratios on the courts of appeals for the twelve-month period
ending June 30, 2013.
Circuit
D.C.
Table 1
Senior Judges-All Circuits14
Total Appeals
Active Judges
Authorized
1,137
11
Sitting Senior
Judges
6
First
1,562
6
4
Second
5,186
13
10
13. See id. at 21.
14. See Administrative Office of the U.S. Courts, U.S Court of Appeals Summaryl2
Month PeriodEnding June 30, 2013, http://www.uscourts.gov/viewer.aspx?doc=/uscourts/
Statistics/FederalCourtManagementStatistics/2013/appeals-fcms-summary-pages-june-2013
.pdf [hereinafter Court ofAppeals Summary-2013] (accessed Jan. 29, 2014; copy on file
with Journal of Appellate Practice and Process).
188
Third
Fourth
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
Table 1
Senior Judges-All Circuits (continued)
3,859
14
15
5,064
11
1
Fifth
Sixth
Seventh
Eighth
Ninth
Tenth
Eleventh
7,401
5,088
2,909
2,943
12,669
2,125
6,417
17
16
11
11
29
12
12
7
8
4
5
17
10
7
TOTAL
56,360
167
90
It must be emphasized that the number of senior judges is
not based on any authorized action from on high, because taking
senior status is the voluntary action of the individual judge, and
this in turn depends on the tradition of the particular court of
appeals. The senior judges on each court with the most years of
judicial service to that court are shown in Table 2.
Table 2
Longest-Serving Senior Circuit Judges
Circuit
D.C.
Judge
Harry Thomas Edwards
Service Began
02-20-1980
First
Second
Third
Fourth
Fifth
Sixth
Seventh
Eighth
Ninth
Tenth
Eleventh
Bruce M. Selya
Amalya Lyle Kearse, Jon 0. Newman
Ruggero J.Aldisert
Clyde H. Hamilton
Thomas M. Reavley
Damon J. Keith
William J. Bauer
Myron H. Bright
Alfred T. Goodwin
William J. Holloway, Jr.
James Clinkscales Hill
10-14-1986
06-21-1979
07-29-1968
07-22-1991
07-13-1979
10-21-1977
12-20-1974
06-07-1968
11-30-1971
09-16-1968
05-21-1976
It should be noted that on four of the federal courts of
appeals, the judge with the most years of service remains on
LIFE AS A SENIOR CIRCUIT JUDGE
189
active status: Judge Torruella of the First Circuit, Judge
Wilkinson of the Fourth Circuit, Judge King of the Fifth Circuit
(who received her commission on the same day as Judge
Reavley), and Judge Tjoflat of the Eleventh Circuit.
III. THE SENIOR JUDGE EXPERIENCE ON THE THIRD CIRCUIT
A. The Structure of the Role
Shortly before the end of each fiscal year, senior judges on
my court inform the chief judge how many days or weeks during
the upcoming year they desire to sit with panels, and indicate the
times of the year that are most convenient for them. Neither
senior judges nor active judges have any say, though, as to when
and with whom they will participate in the decisional process of
the court. Nor do the judges have any input as to which cases
will be assigned to their panel of three. Not even the chief judge
has the ability to control case assignment. The calendar team in
the Office of the Third Circuit Clerk fashions the calendar,
following the mantra that as soon as a particular appeal ripensthat is to say that as soon as all required briefs are filed-it is
assigned to the next available panel. This is not a random pickand-choose deal; the case goes to the next panel available on a
first-ripened, first-assigned basis.'
Our court strives to have a total of about thirty weeks of
panel sittings a year, with roughly forty cases in a four-day
week.1 6 The four-day-week tradition was a creation of three
15. See Internal Operating Procedures of the United States Court of Appeals for the
Third Circuit 3 (U.S. Ct. of App. for the 3d Cir. 2010), http://www2.ca3.uscourts.gov/
legacyfiles/IOP 2010_final2.pdf("[F]ully briefed cases are randomly assigned by the clerk
to a three-judge panel.") [hereinafter Third Circuit IOP] (accessed Jan. 29, 2014; copy on
file with Journal of Appellate Practice and Process).
16. Once the court determines the number of weeks of merits panel sittings for a year,
it then determines the number of weeks each active judge must participate. In my time on
the court, it has vacillated between five and seven weeks, the present number being six. In
1969, my first full year in active service on the court, each judge had six weeks of sittings
with fifteen cases on the merits each week for ninety cases that year, the national average
being ninety-three. At that time, every motion was argued. Today we do not hear oral
argument on motions, and for good reason. Active judges still sit for roughly the same
number of weeks as they did in 1969, but consider more than twice the number of appeals
per week than we did forty-four years ago.
190
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
judges appointed by President Franklin D. Roosevelt: Judge
John Biggs, Jr., appointed in 1937; Judge Albert B. Maris,
appointed in 1938; and Judge Herbert F. Goodrich, former dean
of the University of Pennsylvania Law School, appointed in
1940.17 These judges set the pattern of encouraging judges on
the federal courts of appeals to serve as adjunct law professors
and they made every Wednesday available for teaching, hence
no oral arguments on Wednesdays. And our judges are still
teaching today.' 8
B. The Expected Workload
The expected workload of each senior judge determines the
size and composition of his or her staff. These determinations
are made annually. Every senior judge who is designated and
assigned to perform judicial duties is provided with suitable
chambers and space for the judge's authorized staff. 19
Active circuit judges are currently entitled to five staff
positions-one or two secretaries and three or four law clerks. A
senior circuit judge who agrees to accept a percentage of the
average workload of an active judge may be certified for staff
and chambers space on a pro-rata basis. On our court, for
17. For a short biography of each of these judges (and indeed, of every federal judgeactive, senior, retired, and deceased), see Federal Judicial Center, BiographicalDirectory
of Federal Judges, 1789-Present, http://www.ijc.gov/public/home.nsf/hisj (including a
search function that accommodates searches focused on "nominating president, type of
court, dates of service, and demographic groups" in addition to name searches) (accessed
Jan. 29, 2014; copy on file with Journal of Appellate Practice and Process).
18. 1 served as an adjunct professor at the University of Pittsburgh School of Law from
1966 to 1986, first teaching Common Pleas Practice, then Federal Courts, Comparative
Law, and finally Advocacy and Adjudication, in which the text was my book, The Judicial
Process: Text, Materialsand Cases (2d ed., West 1996). 1 also served from 1969 to 1984
on the faculty of the Senior Appellate Judges Seminar, sponsored by the Institute of
Judicial Administration and housed at New York University School of Law in New York
City. Judges from my court who have recently served as adjunct professors include
Anthony J. Scirica at the University of Pennsylvania; D. Brooks Smith at Pennsylvania
State University; D. Michael Fisher at the University of Pittsburgh; Michael A. Chagares at
Seton Hall University; Kent A. Jordan at the University of Pennsylvania, Vanderbilt
University, and Widener University; Thomas M. Hardiman at Duquesne University; Joseph
A. Greenaway, Jr., at Cardozo School of Law and Columbia University; Thomas I.
Vanaskie at Pennsylvania State University; and Patty Shwartz at Fordham University. And
of course Dolores Sloviter was a professor of law at Temple University before joining our
court.
19. See 28 U.S.C. §§ 294, 462, 712 (available at http://uscode.house.gov).
LIFE AS A SENIOR CIRCUIT JUDGE
191
example, staffing for senior judges is determined by calculating
the percentage of an active judge's workload performed by the
senior judge and then applying that percentage as shown in
Table 3.
Table 3
Staff Calculation for Senior Judges-Third Circuit
Chambers Staff Authorized
Workload
25% of Active
Judge's Workload
Two (one assistant, one clerk)
40% of Active
Judge's Workload
Three (one assistant, two clerks)
60% of Active
Judge's Workload
Four (one or two assistants, two or three
clerks)
80% of Active
Judge's Workload
Five (one or two assistants, three or four
clerks)
C. The SeniorJudge's Role on the Court
Whatever the percentage of an active judge's workload
handled by a senior judge, his or her role in a particular case is
the same as that of any other judge on the panel to which the
case is assigned. He or she must examine carefully the parties'
briefs, and will of course also frequently refer to the appendix,
which will ideally contain all relevant portions of the record. All
judges, including senior judges, contribute to the decision of
whether an appeal will be ordered for oral argument. Perhaps the
only significant thing that a senior judge cannot do on a merits
panel is preside over that panel; regardless of his or her years of
192
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
service to the court, the active judge with the most seniority
presides.20
In addition to merits panels, senior judges may also
participate on special one-year panels, including motions panels.
These generally dispose of procedural requests by counsel such
as petitions for writs of mandamus. Other special panels handle
pro se and immigration cases, and death-penalty panels are
another example.
One key difference between the roles of senior and active
judges emerges when the court considers whether to hear a case
en banc.21 In these situations, only active judges are permitted to
vote on whether to hear the case en banc. However, if a senior
judge sits on a panel whose case is chosen for en banc rehearing,
that senior judge may sit with the full court, vote on the
disposition, and even write the majority opinion-or a
dissenting opinion-on the ultimate resolution of the case. 22
IV. MY EXPERIENCES AS A SENIOR CIRCUIT JUDGE
Having begun my federal court service at the age of fortynine in 1968, I served for eighteen years as an active judge, and
as Chief Judge of the Third Circuit from 1984 to 1986 before
senior status in 1986 at the age of sixty-seven. Had my health
permitted, I would have served as the chief judge for three more
years-until I turned seventy in November 1989. And prior to
my federal-judge service, I was a Pennsylvania Common Pleas
Court judge from January 1962 to July 1968. Thus, before
becoming a senior judge, I served over six years as a state trial
judge and eighteen years as an active federal appellate judge.
A. Making the Decision to Take Senior Status
For me, taking senior status was not exactly a voluntary
act; my ticker called the shots. Back in 1983, I underwent the
20. Third CircuitIOP, supra n. 15, at 3-5 (outlining procedures for oral argument).
21. Typically, en banc votes occur after a panel files an opinion and a party petitions
the court for rehearing en banc. Less frequently, the court decides to hear a case en banc
before the panel's opinion is ever filed.
22. Third Circuit IOP, supra n. 15, at 13-17 (setting out procedures for en banc
consideration).
LIFE AS A SENIOR CIRCUIT JUDGE
193
open-heart procedure popularly known as a "triple bypass,"
which permitted the blood to flow unimpeded from my aorta to
my coronary artery. After a short recuperation, I went on my
merry way carrying a full court schedule, then becoming chief
judge and continuing to accept invitations to speak at bar and
judicial meetings.
One of these speaking engagements brought me to New
York City in the late spring of 1985 where everything went well
during the day. But I spent the evening trying to figure out what
I had eaten to cause the upset stomach and other discomfort that
I was experiencing. I didn't realize what was happening until my
wife Agatha and I stopped for lunch in Carlisle, Pennsylvania,
about halfway through the drive back to Pittsburgh. In the
process of leaving the car, I passed out and fell to the ground,
but-mirabile dictu-a cardiac nurse was passing by in the
parking lot. She administered aid and had me rushed by
ambulance to the local hospital where, after giving them my
history and being wired up for a cardiogram, I got the news:
"That wasn't indigestion last night; you were having a heart
attack." "Not so," I told the doctors in a smart-ass tone. "I don't
get heart attacks anymore. I've had a triple bypass." The doctor
gently informed me, and I paraphrase, "Bypass, chmyze pass,
buddy, the cardiogram doesn't lie and it's corroborated by what
you told us happened last night."
Nine days later, I left the Carlisle Hospital and headed for
Pittsburgh where my cardiologists really laid it on, saying that
all three of my coronary artery grafts had now become occluded
and that the triple-bypass surgery had been a total failure. They
also informed me that they could not operate on me again,
because I was no longer a good surgical risk. And then they
gave me news that would inalterably change my life. They told
me that although they could give me medications, I could no
longer live in Pittsburgh because the summers are too hot and
the winters are too cold. They told me I needed to move to a
more temperate climate, so I landed here in Santa Barbara,
California, which is known as the American Riviera because of
its wonderful Mediterranean climate and scenery.
And there's another happy chapter that followed a few
years later. Through my medications, exercise and a good wife,
my own body created a natural bypass with tiny coronary
194
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
capillaries naturally bypassing the obstructions in the main
arteries, a phenomenon that the physicians call "collateral
circulation." Several years later a Santa Barbara cardiologist told
me that my collateral circulation created a natural bypass more
effective than what would have resulted from an effective
surgical triple bypass.
B. From Active to Inactive Senior Status
Since putting on the mantle of senior judge out here in
Santa Barbara, I have always managed to sit every year with my
home court, the Mighty Third Circuit in Philadelphia. In
addition, I was probably maintaining something close to a full
caseload back in the 1980s and 1990s because I was
substantially designated with the Ninth Circuit-that
humongous circuit in the far West that stretches from the state of
Idaho thousands of miles westward across the Pacific to Guam
and the Northern Mariana Islands. I was also designated to a
lesser extent with the Fifth Circuit in New Orleans, the Seventh
Circuit in Chicago, the Tenth Circuit in Denver and the Eleventh
Circuit in Atlanta.
But now my traveling days are over: I sit only with the
Third, and do so by means of a permanent state-of-the-art audiovisual system that cost the government less than one round-trip
airfare, lodging, and meals for a one-week sitting with my home
court in Philadelphia. I can see and hear counsel and my fellow
judges, and they can all see and hear me, too.
In 2013, I was taking 47.2 percent of an active judge's
caseload, and at my present age I was satisfied with this. As of
2014, I have now served fifty-two years as a judge-six years as
a judge of the Court of Common Pleas of Allegheny County,
Pennsylvania, and forty-six years as a circuit judge. This essay is
my swan song as an active senior judge. In August 2014, I will
be assuming inactive status, taking time to enjoy the company of
my beautiful wife, Agatha, our children, and our grandchildren.
LIFE AS A SENIOR CIRCUIT JUDGE
195
V. DAILY LIFE IN MY SENIOR-JUDGE CHAMBERS
A. My Senior-JudgeLaw Clerks
One of the joys of being a senior judge is the opportunity to
continue mentoring the next generation of legal minds. Since
assuming senior judge status in 1986, I have had forty-nine law
clerks from twenty-seven law schools. At first they served twoyear terms, but starting in 1996, I changed the term to one year.
My two sons Rob and Greg, who are partners in law firms in
Portland, Oregon, and Los Angeles, California, respectively,
informally suggested to me that I should consider making the
change. They told me that although two-year clerkships made
my work easier with a senior clerk always available to train the
newcomer, it was not fair to the clerks, most of whom leave law
school with huge law-school and undergraduate debts. Allowing
my clerks to move on sooner to the larger salaries offered by the
big firms typically interested in court of appeals clerks made
sense. Now I get two fresh law school graduates each year, and
the training period has been reduced to the two-week overlap
between one outgoing and one incoming clerk.
Each year, I consider and hire students from a wide range
of law schools across the entire country, and these students go
on to do fascinating work after they leave these chambers. Since
becoming a senior judge, Berkeley has provided me with five
clerks, more than any other school. Not far behind are Harvard
and the University of Pennsylvania, with four each, and Notre
Dame and Pepperdine, with three each. The only other schools
to send me multiple clerks are the University of Pittsburgh, the
University at Albany, Hastings, New York University,
Northeastern, Duke, UCLA, and USC, with two each. My
process for selecting clerks is unique and comprehensive, and
necessarily so; we have a tight-knit chambers which is not in a
courthouse and I need people who can "play nice." Table 4
contains a list of all the clerks who have served in my chambers
since I took senior status in 1986.
196
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
Table 4
Judge Aldisert's Law Clerks while on Senior Status
Pittsburgh
1985-1987
R. Scott Henderson
Albany
1986-1987
John lole
Notre Dame
1986-1988
John D. Goetz
Hastings
1987-1989
Caitlin M. Larsen
1988-1990
Albany
Catherine S. Hill
Notre Dame
1989-1991
Anne Marie Finch
Pepperdine
1990-1992
Susan S. Seemiller
Cincinnati
1991-1993
Glenn J. Dickinson
Berkeley
1992-1994
Kathleen Vanderziel
New York University
1993-1995
Jason P. Baruch
Northeastern
1994-1996
Thomas 0. Main
Berkeley
1995-1997
Gregory C. Pingree
Northeastern
1996-1997
Renee M. Bunker
Seattle
1996-1997
Curt C. Cutting
Boston College
1997-1998
Robert J. Malionek
Pittsburgh
1997-1998
A.
Schroeder
Theodore
New York University
1998-1999
Lisa J. Danetz
Villanova
1998-1999
Jonathan L. Marsh
Rutgers
1999-2000
Thomas P. Krzeminski
Pennsylvania
1999-2000
Paul F. Stone
Berkeley
2000-2001
Erin C. Framke
Pennsylvania
2000-2001
Maryann Surrick
Pepperdine
2001-2002
Derek Brown
Vermont
2001-2002
Sean C. Flynn
Pennsylvania
2002-2003
Michael A. Mugmon
Columbia
2002-2003
Robert K. Simonds
Brigham Young
2003-2004
Edward L. Carter
Emory
2003-2004
Erin Englebrecht Hannum
Notre Dame
2004-2005
Nathaniel Pollock
Duke
2004-2005
Alyssa Rower
UCLA
2005-2006
Ryan Kirkpatrick
Duke
2005-2006
James R. Stevens III
Yale
2006-2007
Stephen Clowney
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Table 4
Judge Aldisert's Law Clerks while on Senior Status (continued)
Jeremy Peterson
Rita Lomio
Anika Stucky
Matthew Bartlett
Meehan Rasch
Candace Jackman
Leslie Goemaat
Joseph C. Hansen
Patrick C. Bageant
Grace W. Liu
Collin P. Wedel
Kristina Katz Cercone
Daniel S. Gershwin
Kathleen Jones Covarrubias
David A. Ciarlo
Fiona Y. Tang
2006-2007
2007-2008
2007-2008
2008-2009
2008-2009
2009-2010
2009-2010
2010-2011
2010-2011
2010-Present
2011-2012
2011-2012
2012-2013
2012-2013
2013-2014
2013-2014
Harvard
Harvard
Oklahoma
Hastings
UCLA
UC Davis
Harvard
Minnesota
Berkeley
Pepperdine
Stanford
Harvard
Pennsylvania
USC
USC
Berkeley
B. My System for Working with My Law Clerks
I was chief judge of the Third Circuit during the formative
years of the computer revolution that dawned a new day for
federal courts. Prior to that, judges had to cut and paste
corrections into draft opinions, and correspondence was sent by
typewritten letter rather than by e-mail. As difficult as it may be
to believe today, my chambers in Pittsburgh had no photocopier
until the mid-1970s: My staff had to cross the street to use the
equipment in the Office of the District Clerk. Today, we are
outfitted with a plethora of technological gadgets to keep me
connected to my colleagues across the country, and my
chambers procedures have changed drastically. Without the
assistance of my staff, I frequently fire off short e-mails to other
judges from my computer. Many of the other traditionally
secretarial tasks previously completed by a judicial assistantsuch as typing edits to opinions-are now completed by me and
my clerks. Indeed, when my last judicial assistant left her
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position to enable her spouse to pursue a job opportunity
elsewhere, I decided to make a staffing change. Rather than
replacing my departed (and excellent) judicial assistant, I
decided to hire a career law clerk, Grace W. Liu. In addition to
performing traditional judicial-assistant functions, such as
answering the phone, transcribing dictation, maintaining casestatus sheets, circulating draft opinions, filing approved
opinions, maintaining my calendar, and ordering supplies, she
also performs the duties of a law clerk. She edits certain drafts
of opinions for which I have written the first draft, and regularly
drafts not-for-publication opinions (NPOs) from scratch. In this
respect, she serves as a third chambers clerk. I was extremely
fortunate to find Grace-a very intelligent and personable new
graduate of a fine law school who, for a number of years now,
has brought both a pleasant personality and professional
competence to my daytime surroundings. Moreover, because my
two regular clerks can have the pleasure of spending only one
year "at the beach" in Santa Barbara with me, my permanent
career clerk gives my chambers continuity in the management of
opinions and court matters that would otherwise be difficult to
accomplish.
I often call myself the Chief Law Clerk in chambers
because I read all the briefs and appendices as soon as they
arrive. In the chambers of some other judges, the clerks take the
first crack at all the cases, but reading cases before the clerks
examine them is a practice that I have followed for over twentyfive years. It is, in fact, generated by the feeling encapsulated in
the expression "been there; done that." Having been a state and
federal judge for over a half-century, I am totally acclimatized to
many of the cases on the calendar. It is more efficient that I read
the cases first because of my greater familiarity with the legal
issues and the factual scenarios presented. Accordingly, I can
efficiently read the briefs and the district court opinion in the
typical case, come to a tentative conclusion, and proceed to
dictate a bench memo. Were clerks fresh out of law school to
make the first attempt in these cases, they would be facing
something new to them, requiring them essentially to reinvent
the wheel in every case, while I may have faced the problem in a
particular case seven or eight times in the past five years. In this
type of case, which I call a "slam dunk," it is more efficient for
LIFE AS A SENIOR CIRCUIT JUDGE
199
me to conduct the first examination. Commonly, these are the
cases that are clearly controlled by our precedent, that are not
argued before the court, and will be terminated with an NPO.2 3
In these cases my bench memos are succinct.
Where the issue is novel, I prepare a longer bench memo
and label it as a "law clerk priority" with the understanding that
the clerks are not bound by the tentative conclusions or analyses
contained in my memo. They will bake the case from scratch,
preparing a bench memo of their own, and devoting much more
time to the case than I did. And of course, they are instructed to
see me if they run into a problem while working on the case.
More often than not, a few minutes with me will save them
hours of time.
Because these are commonly the cases for which there will
be argument and a for-publication opinion, the bench memo
prepared by the clerk is a very formal document. It is written in
elegant language with the understanding that if the opinion is
assigned to me, we may be able to cannibalize that memo by
lifting language from it and incorporating it into a draft opinion.
C. Cases Decided as a Nonagenarian
One must keep in mind that as a senior judge I would have
received the same compensation if I had truly retired-closed
my chambers, relinquished my support staff, and stayed at
home. I might have played golf more than one day a week, or
read all the books from my fifty-four-volume genuine-leatherbound Legal Classics Series, or traveled up and down the
California coastline or mountain ranges or deserts with my wife,
or played more with my grandchildren.
Instead, I chose to continue my judicial duties through my
nineties because I simply love my work. To give you a sense of
what keeps me bounding down the hallway to my chambers
each weekday, I will now discuss the number and nature of the
appeals that I have decided since I turned 90 in November 2009.
As a "young" senior judge, I maintained something close to
a full caseload, counting sittings with my court as well as
23. Relatively early in the appellate process, the panel's presiding judge will assign to
each of the three judges one-third of the calendar for which to write an NPO. Of all the
cases on the typical calendar, roughly eighty to ninety percent fall into this category.
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sittings with other courts of appeals across the country. In recent
years, I have eased up on the sittings, carrying not quite half the
caseload that an active udge would carry. Table 5 shows the
number of merits-panel2 cases I have reviewed in the last four
years.
Table 5
Judge Aldisert's Caseload
90th Birthday to Date
Sitting
Number of Appeals
November 2009
16
March 2010
18
July 2010
16
October 2010
19
November 2010 (Ninth Circuit)
6
February 2011
20
June2011
18
September 2011
9
October 2011
16
January 2012
9
April 2012
6
June2012
13
September 2012
6
October 2012
6
February 2013
16
April 2013
7
June 2013
11
September 2013
7
TOTAL
219
What were these 219 cases all about? We had everything
from Abstention to Torts. (I hoped that there would be a zoning
case to truly go from A to Z, but alas, there was not.) Table 6,
which is based on my notes about the cases, should give you an
idea of what's been keeping me busy since turning 90.
24. As I noted above, I also sometimes serve on other "special" panels. The cases I
have reviewed as part of these panels are not reflected in Table 5.
LIFE AS A SENIOR CIRCUIT JUDGE
201
Table 6
Types of Cases Heard by Judge Aldisert
90th Birthday to Date2 5
Abstention
Arbitration
Attorney's Fees
Bankruptcy
Civil Rights (42 U.S.C. § 1983)
Class Actions
Constitutional Law
1st Amendment
2nd Amendment
4th Amendment
5th Amendment
6th Amendment
Miranda
Contracts
3
4
2
10
21
4
24
2
1
12
4
4
1
7
Criminal Law (sufficiency of evidence, Constitutional challenges, and so on)
42
Criminal Sentencing
Employment Discrimination
Evidence
Federal Tort Claims Act
40
18
10
3
Frivolous Appeals (Anders v. California)
10
Habeas Corpus
Immigration
Immunity
Insurance
Jurisdiction
Jury Challenge
14
20
1
9
5
2
25. Astute readers (apply for a clerkship immediately!) will notice that the number of
cases shown in Table 6 exceeds the 219 shown in Table 5. I have double-counted cases that
presented issues spanning multiple areas of law. After more than fifty years on the bench, I
think I'm entitled to a little judicial license.
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Table 6
Types of Cases Heard by Judge Aldisert
90th Birthday to Date (continued)
Jury Instruction
Lawyer Discipline
Miscellaneous Federal Statutes
Miscellaneous State Statutes
Partnership
Products Liability
RICO
Securities
Social Security
Torts
4
2
9
3
2
4
2
4
2
6
Leaping out of the statistics in Table 6 is the huge number
of appeals in criminal cases. Forty-two appeals presented
challenges to convictions under federal criminal law; forty
appeals challenged the sentence issued by the district judge.
There is a significant amount of overlap between these two
categories, as many criminal defendants appeal both the
underlying conviction and the sentence. Accordingly, over
twenty percent of my caseload since November 2009 has
consisted of appeals brought by criminal defendants dissatisfied
with either their convictions or their sentences. In 2012, our
court reversed the district court in only 5.8 percent of the
criminal appeals. The national average was 6.4 percent.26 The
law in criminal cases is now rather stabilized, and most of these
appeals are not listed for oral argument and do not merit a
published opinion.
I am very interested in the proliferation of sentencing cases
in particular because in my time as a lawyer from December
1946 to January 1962, and then as a state trial court and federal
26. See Administrative Office of the U.S. Courts, U.S. Courts of Appeals-Appeals
Terminated on the Merits, by Circuit, During the 12-Month Period Ending March 31,
2012, http://www.uscourts.gov/Viewer.aspx?doc=/uscourtscourts/Statistics/FederalJudicial
CaseloadStatistics/2012/tables/BO5Marl2.pdf (accessed Jan. 29, 2014; copy on file with
Journal of Appellate Practice and Process).
LIFE AS A SENIOR CIRCUIT JUDGE
203
circuit judge until 1987, criminal defendants generally could not
directly appeal from a criminal sentence, provided that the
sentence did not exceed the statutory maximum. 27 The change
was the result of the Sentencing Reform Act of 1984 (SRA),
which took effect on November 1, 1987, providing a new system
of Sentencing Guidelines and a statutory basis from which
appellate courts could review the severity of a criminal
sentence.2 8 Then, in 2005, the Supreme Court concluded in
United States v. Booker29 that because the Guidelines were
styled as mandatory, they violated the sixth amendment right to
trial by jury. The Court excised those portions of the SRA that
made the Guidelines mandatory and, accordingly, the Guidelines
became advisory. Additionally, because the Guidelines were
rendered advisory only, the Court articulated that appellate
courts should review sentences for unreasonableness in light of
the Guidelines, but did not explain a jurisdictional basis for this
review. Justice Scalia, dissenting, was of the view that "[t]he
worst feature of the scheme [now set forth by the Court] is that
no one knows-and perhaps no one is meant to know-how
advisory Guidelines and 'unreasonableness' review will function
in practice." 30
Thereafter, in United States v. Cooper,3 the leading case in
our court that interprets Booker, I dissented from the majority
opinion, which concluded that an unreasonable sentence is
"imposed in violation of law" under 18 U.S.C. § 3742(a)(1), 3 2
and that we therefore have statutory jurisdiction to review an
unreasonable-sentence appeal under § 3742(a)(1). 33 I believed
27. For additional history on sentencing appeals, see generally Christopher A. Wyett,
Student Author, Appellate Review of Sentences, 82 Geo. L.J. 1283 (1994) and Barbara A.
Moulton, Student Author, Post-Sentence Review, 76 Geo. L.J. 1108 (1988).
28. Moulton, supra n. 27, at 1110.
29. 543 U.S. 220 (2005).
30. Id. at 311 (Scalia, J., dissenting in part).
31. 437 F.3d 324 (3d Cir. 2006).
32. Id. at 327 ("We believe an unreasonable sentence is 'imposed in violation of law'
under 18 U.S.C. §3742(a)(1).").
33. I rejected this argument, stating:
By relying on § 3742(a)(1) for our jurisdiction, the majority implies that any
unreasonable sentence is "imposed in violation of the law." Even assuming that
this is correct-which I dispute-we would only have jurisdiction if we did, in
fact, conclude that the sentence is unreasonable. Cf Drakes v. Zimski, 240 F.3d
246, 247 (3d Cir. 2001) (observing that when jurisdiction depends on
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THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
then-and am still of the view-that after Booker the courts of
appeals do not have jurisdiction to review a sentence's
"reasonableness," except where the imposed sentence exceeds
the statutory maximum. The Supreme Court has not yet had a
case presenting the issue.
Meanwhile, forty-or eighteen percent-of the 219 appeals
that I have considered since November 2009 present challenges
to sentences, and many of these challenges are to the substantive
reasonableness of the sentence. To be sure, it is rare that our
court has reversed a sentence for substantive unreasonableness.
Nevertheless, these cases clog our dockets, and in my view,
unnecessarily so.
VI. MY OUTSIDE WRITING AS A SENIOR JUDGE:
BOOKS, ARTICLES, AND ESSAYS
A. Books
As I have written previously, I believe that we senior
judges have a responsibility to write on topics that interest us,
from our lengthy perspective as members of the federal bench.34
Heeding my own advice, since taking senior status, I have
written six books-thirteen including subsequent editions-that
reflect particular aspects of the law that have interested me. All
of these books but one-the first edition of The Judicial
Process-werewritten after I took senior status and moved from
Pittsburgh to Santa Barbara. As a senior judge, I found that I had
the time to do more than just keep up with a crushing caseload.
My intention is to continue publishing as an inactive judge. Of
course, the market value of intentions tends to diminish when
you reach 94 years.
petitioner's success on the merits, we dismiss for lack of jurisdiction if
petitioner's argument fails on the merits). Here, the majority concludes that
Cooper's sentence is reasonable, but it nonetheless affirms the District Court
rather than dismissing the appeal for lack of jurisdiction. By affirming rather
than dismissing, the majority is exercising jurisdiction over an appeal from a
sentence that was reasonable. Surely, the majority cannot mean to say that a
reasonable sentence is also "imposed in violation of law" under § 3742(a)(1).
Id. at 340 n. 18 (Aldisert, J., concurring and dissenting) (emphasis in original).
34. See Ruggero J. Aldisert, All Right, Retired Judges, Write! 8 J. App. Prac. & Process
227 (2006).
LIFE AS A SENIOR CIRCUIT JUDGE
205
My books, which I discuss in more detail below, include:
The Judicial Process: Text, Materials and Cases (2d ed.,
West 1996)
Logic for Lawyers: A Guide to Clear Legal Thinking (3d
ed., NITA 1997)
Winning on Appeal: Better Briefs and Oral Argument (2d
ed., NITA 2003)
Road to the Robes: A Federal Judge Recollects Young
Years and Early Times (Author House 2006)
A Judge's Advice: 50 Years on the Bench (Carolina
Academic Press 2011)
Opinion Writing (3d ed., Carolina Academic Press 2012).
1. Making and Justifying JudicialDecisions
A couple of my books reflect my decades-long interest in,
if not fascination with, the twin theories of judicial
decisionmaking and justifying decisions. As the years
progressed, I discovered that the literature on the subject was
sparse, if not nonexistent. A recurring phrase in my researchthe judicial process, sometimes defined as "how judges decide
cases and how they should decide them"-intrigued me, and yet
I could not put my finger on an appropriate test.
This prompted me to write on the subject, and to continue
doing so after I took senior status. The end result of this
endeavor was my first book, The Judicial Process: Text,
Materials and Cases. In the first edition I pointed out that
[t]oday law is no more (nor less) than one of many methods
of ordering and channeling the energies of society; its only
measure is its effect on society. Thus, the path seems clear
for unabashed and open policy determinations by the
courts: functional and result-oriented if the impression
conveyed is of a new jurisprudence; doctrinaire and
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THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
conceptual if, upon close analysis, certain elements of this
new jurisprudence disclose a fealty to older, more orthodox
concepts.
The next step was to explain how the courts can properly make
these policy determinations, and I found the answer: logic in the
law. Accordingly, I wrote Logic for Lawyers: A Guide to Clear
Legal Thinking. 6 Deductive reasoning moves from the general
to the particular; inductive reasoning moves from the particular
to the general, described as inductive generalization, or from the
particular to the particular or particulars, described as analogy. I
believed when I wrote, and still do believe, that all judges and
lawyers should have a strong foundation in logic, and that it's
never too late to teach an old dog new tricks.
2. Writing Opinions and Briefs
The JudicialProcess and Logic for Lawyers were just the
start, though. While I was teaching How to Write a Judicial
Opinion, at the Seminar for Senior Appellate Judges, sponsored
by the Institute for Judicial Administration at New York
University, the editor-in-chief of West Publishing Company
commissioned me to write a book on how to write judicial
opinions. The reduced caseload that generally comes with taking
senior status allowed me the time to produce Opinion Writing,
which was first published in 1990. West, and its successor
Thomson-West, distributed the book free of charge to all federal
judges and state appellate judges for about seventeen years
thereafter. The book bears my name as author, and the words are
indeed mine, but the content is the result of my interaction with
about 300 appellate judges-including four justices of the
United States Supreme Court-over a span of about twenty
years. By 2012, it was in its third edition.
The most successful of my books today, Winning on
Appeal: Better Briefs and OralArgument, can be found as a text
in law schools and a vade mecum in many law offices. It was
first published in 1992. The late Professor Charles Alan Wright
35. The Judicial Process at 3. This book's foreword was written by the late Justice
Harry A.Blackmun, best remembered, perhaps, as the author of Roe v. Wade.
36. The foreword to this book was written by the late Justice William J. Brennan, Jr.,
the magnificent philosopher of the Warren Court.
LIFE AS A SENIOR CIRCUIT JUDGE
207
of the University of Texas, then known as America's foremost
expert on federal courts, wrote in the foreword that I had been
able to "distill" in my books the lessons I learned as a judge and
"set them out for the instruction of [my] colleagues on the bench
and of the lawyers who appear before the judges" and that I had
included "[c]omments from state chief justices, federal chief
justices, and from law clerks [that] add a broader perspective" to
what I had observed.
3. My PersonalRecollections and Advice
Although I truly enjoyed writing about the law, for some
time I also wanted to write about certain events in my life that
took place before President Johnson nominated me to this
judgeship. I had a story and finally decided to tell it in Road to
the Robes: A FederalJudge Recollects Young Years and Early
Times. That's what the book is all about: It's a collection of
literary snapshots taken against the backdrop of important times
in America-from the beginning of the Roaring Twenties to the
turbulent and traumatic year of 1968. Its pages are like the story
a grandfather or great-grandfather would tell his Baby Boomer
kids or the generations that followed-a story about the early
days when the great waves of immigrants came to Western
Pennsylvania from Southern, Central and Eastern Europe to
work in the coal mines and steel mills; a story about how the
children of these immigrants made up a large portion of those
who came to be known as the Greatest Generation; a story about
how they came of age during the Depression and left home for
three or four years to fight World War II in Africa, Europe, and
the far reaches of the Pacific; and a story about the men and
women who then returned to help propel this country into
becoming the most powerful nation in the world.
Finally, I decided to create a single volume that would
distill from my other writings the observations that I contributed
to the body of American legal scholarship beginning in 1966.
The result was A Judge's Advice: 50 Years on the Bench, which
was published just prior to my golden anniversary as a judge in
2012. In A Judge's Advice, I sought to enrich the skills of
37. Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument xix-xx
(NITA 2d ed. 2003).
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THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
lawyers, and to allow the reader to figuratively open the
chambers door of a veteran member of the state and federal
judiciary and sit down for an informal conversation. The voice is
that of a nonagenarian who has rolled up his sleeves, leaned
back in his chair, and said that he is willing to share
observations on the law-both its anatomy and its philosophical
purposes. The book includes observations drawing upon my
experience since entering law school in September 1941observations that have been set forth in five books and over fifty
scholarly articles published here and in Europe.
B. Articles and Essays Writtenfor ProfessionalPublications
The articles and essays that I have written since taking
senior status cover a lot of legal ground. They include:
and
Jurisprudential
Jurisprudence
Philosophy,
Temperament of Federal Judges, 20 Ind. L. Rev. 453
(1987)
A Tribute to Judge Weis, 49 U. Pitt. L. Rev. 917 (1988)
James Hunter III: The Lawyer in Judge's Clothing, 62
Temp. L. Rev. 807 (1989)
Precedent: What It Is and What It Isn t; When Do We Kiss
It and When Do We Kill It? 17 Pepp. L. Rev. 605 (1990)
The English Appellate Process: A Distant Second to Our
Own? A Book Review of Appellate Justice in England and
the United States: A Comparative Analysis, 75 Judicature
48 (1991)
Goodbye Dean, and Welcome Back, Provost-Professor,54
U. Pitt. L. Rev. 951 (1993) (tribute to Mark Nordenberg,
now Chancellor of the University of Pittsburgh)
The Brennan Legacy: The Art of Judging, 32 Loy. L.A. L.
Rev. 673 (1999)
209
LIFE AS A SENIOR CIRCUIT JUDGE
A. Leon Higginbotham,Jr.: A Remembrance, 53 Rutgers L.
Rev. 549 (2001)
All Right, Retired Judges, Write! 8 J. App. Prac. & Process
227 (2006)
Max Rosenn: An Ideal Appellate Judge, 154 U. Pa. L. Rev.
1025 (2006)
Perspective from the Bench on the Value of Clinical
Appellate Training of Law Students, 75 Miss. L.J. 645
(2006)
Logic in Forensic Science in Forensic Science and Law 11
(Cyril H. Wecht and John T. Rago eds., CRC Press 2006)
Rat Race: Insider Advice on Landing Judicial Clerkships,
110 Penn. St. L. Rev. 835 (2006) (with Ryan C. Kirkpatrick
and James R. Stevens III)
Logic for Law Students: How to Think Like a Lawyer, 69
U. Pitt. L. Rev. 1 (2007) (with Stephen Clowney and
Jeremy D. Peterson)
Introduction in The Third Circuit Appellate Practice
Manual xi (James C. Martin, Nancy Winkelman eds., PBI
Press 2007)
Carol Los Mansmann: Daughter of Pittsburgh, 46 Duq. L.
Rev. 15 (2007)
Remarks: Golden Pen Award Acceptance,
Writing xxi (2009)
15
Leg.
The HonorableRalph Cappy: DistinguishedKeeper of the
King's Bench Tradition, 47 Duq. L. Rev. 481 (2009)
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THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
Opinion Writing and Opinion Readers, 31 Cardozo L. Rev.
1 (2009) (with Meehan Rasch and Matthew P. Bartlett)
Judicial Declaration of Public Policy, 10 J. App. Prac. &
Process 229 (2009).
VII. THE IMPORTANCE OF SENIOR STATUS FOR THE JUDGES
THEMSELVES AND THE JUDICIARY AS A WHOLE
A. Continuingto Work is Goodfor Senior Judges
Looking back over a quarter of a century in senior-judge
status, I can say that this experience has been inspiring, exciting,
and exhilarating. I always knew that I would not enjoy the early
retirement common to those who have held responsible positions
in commercial and industrial institutions, which often begin
before one reaches the age when I took senior status. Those
retirements often feature a dismal farewell dinner and the
presentation of an engraved timepiece-sometimes even a
pocket watch. Thereafter, perhaps a trip to Europe with the
family, via the pier (if you're the old-fashioned type and taking
the Queen Mary) or JFK if you're going by air. Then you're
back home, and you say to yourself, "What in the hell am I
going to do now?" Too often the answer is nothing. And all too
often the brain-which was exercised regularly from the first
year of college until the final draft of the retirement-dinner
speech was written-ceases to be used by the retiree.
That was not the life for me.
I am convinced that one's brain is a muscle, and desuetude
can lead to deterioration. But stringent exercise of the thinking
process by habitual or customary usage will strengthen the
brain's capacity. "Use your head" is more than an elementary
teacher's admonition to a pupil; it's a cry for judges to activate
and stimulate brain cells through deductive and inductive
reasoning. Thus, in my last twenty-six years as a senior judge I
have been functioning four days a week and part of every
weekend as a busy federal circuit judge-reading briefs,
examining appendices, researching on Westlaw, reviewing draft
opinions from other panel members, and writing and refining
opinions. In other words, I perform the same work as an active
LIFE AS A SENIOR CIRCUIT JUDGE
211
judge on any of the federal courts of appeals. The only
difference? I work fewer cases per year.
And so, when asked what I like about being a senior judge,
I generally respond with these three things: First, I appreciate
that being a senior United States circuit judge requires me to
keep exercising my mind. Second, I like belonging to an
assemblage of judges that is not static; there are always new
people to meet, new minds to appreciate, and new approaches to
consider.3 8 And finally, I love working with young people,
having had forty-nine law clerks since taking senior status.
These clerks entered my chambers as young students and
emerged with a maturity beyond their ages as fine professionals.
B. The Continuing Work of Senior Judges is Good
for the FederalCourts ofAppeals
It is unfortunate that business retirees are generally let out
to pasture too early. They are not permitted to work, cheek by
jowl, with past colleagues and the men and women who have
replaced them. Contributions from their years of experience with
the company or law firm are not encouraged, not invited, and
not accepted. By contrast, the federal judiciary puts to use
veteran judges who still have much to contribute, and
encourages the oldies to participate in the decisionmaking and
decision-justifying processes of the district and appellate courts.
The practice is alive and kicking. And the federal judiciary is
better for it.
Appellate courts today are flooded with cases. We cannot
say that the increase of appeals is directly related to the increase
of trial court filings. Appeals have increased at a far greater rate
than have district court filings. 39 Statistics demonstrating that
senior circuit judges participate in one out of every five appeals
to the federal courts of appeals may be the most significant data
set forth in this essay; these statistics disclose and underscore the
critical role that senior judges play in our judicial system.
38. Twenty-five new judges have joined my court since I took senior status and seven
of these new colleagues have themselves now taken senior status. In fact, each active judge
currently on my court joined after I took senior status.
39. For more on this topic see Ruggero J. Aldisert, Opinion Writing 6 (3d ed., Carolina
Academic Press 2012) (citing the AO's Annual Reports from 1969 through 2008).
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THE JOURNAL OF APPELLATE PRACTICE AND PROCESS
Pardon the aside, but the idea of the federal courts of appeals
without senior judges brings to mind an expression used back
when Hall of Fame pitcher Carl Hubbell faced a bases-loaded
situation: "Hubbell's in trouble.AO Without the ninety senior
judges now helping to decide one-fifth of the cases in our
federal courts of appeals-assisting the 167 active judges in the
twelve regional courts-the federal judiciary would itself be in a
lot of trouble.4 ' Congress would have to create a substantial
number of new active judge positions. Given that some
important members of the Senate Judiciary Committee appear to
be about as enamored of federal judges as they are of walking
barefoot through poison ivy, and also that in the best of times
today's Senate moves at glacial speed in approving replacements
for active judges who have died, resigned, or taken senior status,
a wholesale increase in the size of the federal judiciary is simply
not in the cards. The alternative to using senior-status judges
would be sizeable delays and backlogs measured not in months,
but in years.
VIII. CONCLUDING REMARKS
For my first trial as a judge on Monday, January 15, 1962, I
mounted the bench in Courtroom Number Three, Court of
Common Pleas of Allegheny County, still located on the seventh
floor of Pittsburgh's City-County Building. The case was
Gorshenhausen v. Griffin, a trial by jury in a personal-injuries
lawsuit between two casualty insurance companies. My minute
book, one that I still have after these many years, indicates that I
adjourned court at 3:30 p.m. on Monday and reconvened at 9:30
a.m. on Tuesday. We proceeded through the morning, adjourned
for lunch, and then reconvened at 1:30 p.m. Thirty minutes later
the case settled for the princely sum of $1200.00. It had cost the
taxpayers much more to process this private quarrel.
I now fast-forward fifty-one years to September 2013 for
the latest case I had as a judge before submitting this
manuscript: Ohler v. Lamas. It is an appeal from the United
40. If you are too young to remember Hubbell, suffice it to say that he struck out five
Hall of Fame batters in succession during the 1934 All-Star game: Babe Ruth, Lou Gehrig,
Jimmie Foxx, Al Simmons, and Joe Cronin.
41. See Court ofAppeals Summary-2013, supra n. 14.
LIFE AS A SENIOR CIRCUIT JUDGE
213
States District Court for the Western District of Pennsylvania
(Pittsburgh) involving the denial of a petition for habeas corpus.
This is a homicide case originating in the Court of Common
Pleas, Somerset County, Pennsylvania, in which the appellant
entered a plea of guilty to third-degree murder, was sentenced to
a term of twenty-to-forty years, unsuccessfully exhausted claims
for relief in the Pennsylvania state courts, unsuccessfully
petitioned for habeas relief in the district court and now, with
new court-appointed counsel to represent him, appeals to us
arguing the incompetence of his counsel at trial.
In between these two cases-my first and one of my
latest-were thousands of controversies, civil and criminal, state
and federal, that required a studied decision on my part. Even in
my tenth decade, in the sunset of my senior-status years, I still
look forward to the multi-faceted challenges of the day. And I
do this as a senior circuit judge, the finest job the American
judiciary has to offer.
If this nonagenarian can be accused of suggesting that the
institution of senior judge status is not only important, but now
constitutes an absolutely essential fixture in the modern federal
appellate architecture, I cheerfully plead guilty to what I
consider a unique concept of "retirement"-utilizing the
competences of men and women who have been on the front
lines of court battles for decades and bear the figurative scars
emanating from thousands of skirmishes.